Published Online:

Ban on Guns Near Schools To Be Argued

Article Tools
  • PrintPrinter-Friendly
  • EmailEmail Article
  • ReprintReprints
  • CommentsComments


Alfonso Lopez Jr.'s 1992 arrest for gun possession at a San Antonio high school seemed to be just another example of the growing threat of weapons in schools.

Mr. Lopez, then a senior at Edison High School, has said he was paid $40 to deliver the .38-caliber handgun to another person to be used in an after-school "gang war." School officials were tipped off, and Mr. Lopez was arrested and charged with gun posession on school premises, a third-degree felony under Texas law.

But federal prosecutors, eager to utilize a relatively new federal law known as the Gun-Free School Zones Act, decided to charge Mr. Lopez with possessing a gun within 1,000 feet of a school.

That choice has now brought Mr. Lopez's case to the U.S. Supreme Court. The Court will hear arguments next week on the question of whether Congress overstepped its authority in 1990 when it adopted the ban on gun possession in and around schools.

N.S.B.A. Dissents

The outcome of U.S. v. Lopez (Case No. 93-1260) might seem to have limited practical effect. Relatively few prosecutions have been brought nationwide under the federal statute, and the law's critics argue that gun possession near schools can be curbed with existing state laws.

But numerous education groups have seized the opportunity to tell the Justices about the problem of school violence. They are urging the High Court to uphold the Gun-Free Schools Zone Act as a constitutional and appropriate federal response to the threat of deadly weapons near schools.

"Although [the law] really hasn't been used a lot around the country, it is a legitimate federal strategy," said George Butterfield, the legal-services director of the National School Safety Center in Westlake Village, Calif.

"There is a direct relationship between the number of guns out there and available to students and their bringing them to school," he added.

However, one major education group has broken ranks with the others to come out against the federal law. The National School Boards Association has joined a friend-of-the-court brief that argues that the law represents federal encroachment upon traditional state control of gun regulation and public education.

"Congress does not have total authority over education," said August W. Steinhilber, the general counsel of the N.S.B.A.

A Constitutional Defense

The case began in March 1992 when officials found the handgun and five bullets in Mr. Lopez's waistband. After federal prosecutors decided to take over the case, state charges were dropped.

Mr. Lopez, then 18, was indicted by a federal grand jury on one count of possession of a firearm in a school zone. The federal violation is a misdemeanor and is applicable only to adults.

With strong evidence against Mr. Lopez, his lawyers raised a constitutional defense. They argued the gun-free school-zones law was unconstitutional because Congress exceeded its powers in enacting it. Since the federal government does not have general police powers but may regulate interstate commerce, Congress must show a criminal law's connection to commerce to be valid, they argued.

A federal district judge rejected that argument and convicted Mr. Lopez in a bench trial. He was sentenced to six months in prison and two years of supervised release.

But the U.S. Court of Appeals for the Fifth Circuit overturned the conviction last year. An appellate panel held that Congress failed to establish a connection between interstate commerce and gun possession near schools when it passed the law.

The law might have been sustained if Congress had made appropriate legislative findings linking gun possession to commerce, the panel said, but "the management of education and the general control of simple firearms possession by ordinary citizens have traditionally been a state responsibility."

The ruling conflicted with a ruling by the U.S. Court of Appeals for the Ninth Circuit, which upheld a conviction under the same law. In April, the Supreme Court accepted the Justice Department's appeal of the Texas case. (See Education Week, April 27, 1994.)

Mr. Lopez, meanwhile, graduated from an alternative-education center in June 1992 and has been free on an appeal bond, according to his lawyer, John R. Carter of the federal public defender's office in San Antonio. The young man has enlisted in a delayed-entry program in the U.S. Marine Corps, which he hopes to join if the High Court does not restore his conviction.

'An Unacceptable Threat'

Congress enacted the Gun-Free School Zones Act in 1990 as part of an omnibus anti-crime bill. When he signed that bill into law, President George Bush expressed reservations about the gun-free school-zones measure, saying it "inappropriately overrides legitimate state firearms laws with a new and unnecessary federal law."

But in the federal government's brief before the Supreme Court, the Clinton Administration's Solicitor General, Drew S. Days 3rd, argues that the Constitution's commerce clause empowers Congress to regulate activity that has a substantial effect on interstate commerce without making explicit findings about the connection between the activity and commerce.

The brief argues that public education is undoubtedly important to the national economy. "Congress had ample basis for concluding that the presence of guns in schools poses a substantial and unacceptable threat to the educational process," it says.

Among the organizations that have filed briefs supporting the government are the National School Safety Center, the National Association of Secondary School Principals, the American Federation of Teachers, the National Education Association, the National PTA, and the Council of the Great City Schools.

One such brief, written by the Center to Prevent Handgun Violence and joined by several education groups, says 65 students and six school employees were shot and killed at schools between 1986 and 1990.

The brief written by the National School Safety Center argues that school violence is a national problem. "The federal government can and should play a role in making our schools safe and welcoming," it says.

State Laws Adequate?

On the other side, lawyers for Mr. Lopez maintain that Congress has intruded into two areas where state governments normally have primary authority: criminal law and education.

"Congress doesn't have the kind of general authority to write a law like this," Mr. Carter said in an interview.

The gun-free school-zones law tramples on the principle of federalism, he contended, and subtitutes a "nationwide federal straitjacket" for state responses to the problem.

By Mr. Carter's count, 42 states have enacted laws with criminal penaties for possession of firearms in or near schools. Other legal experts believe such conduct could be penalized under some law in every state.

The N.S.B.A. came out against the federal law only after receiving assurances that "every state has laws on the books against bringing guns to school," Mr. Steinhilber said.

The N.S.B.A. is concerned that the Justice Department has taken too broad a position about the scope of Congress's power under the commerce clause to regulate education. Federal education laws traditionally have been based on Congress's taxing and spending powers, and states' participation in federal programs is voluntary, Mr. Steinhilber said.

"Now this Justice Department has suggested that the federal government has far greater power under the commerce clause to get almost into the day-to-day operations of the schools," he said. "When we saw that, we were indeed frightened."

"Under the commerce-clause theory, the federal government could control curriculum if it wished," Mr. Steinhilber asserted. "It could do anything."

The High Court hears arguments in the case on Nov. 8 and will issue a decision by next July.

Web Only

You must be logged in to leave a comment. Login | Register
Ground Rules for Posting
We encourage lively debate, but please be respectful of others. Profanity and personal attacks are prohibited. By commenting, you are agreeing to abide by our user agreement.
All comments are public.

Back to Top Back to Top

Most Popular Stories